NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). 1. Compare former Equity Rules 12 (Issue of Subpoena-Time for Answer) and 31 (Reply When Required-When Cause at Issue); 4 Mont. Rev. Codes Ann. (1935) §§ 9107, 9158; N. Y. C. P. A. (1937) § 263; N. Y. R. C. P. (1937) Rules 109-111. 2. U. S. C., Title 28, former § 763 (now § 507) (Petition in action against United States; service; appearance by district attorney) provides that the United States as a defendant shall have 60 days within which to answer or otherwise defend. This and other statutes which provide 60 days for the United States or an officer or agency thereof to answer or otherwise defend are continued by this rule. Insofar as any statutes not excepted in Rule 81 provide a different time for a defendant to defend, such statutes are modified. See U. S. C., Title 28, former § 45 (District courts; practice and procedure in certain cases under the interstate commerce laws) (30 days). 3. Compare the last sentence of former Equity Rule 29 (Defenses-How Presented) and N. Y. C. P. A. (1937) § 283. See Rule 15 (a) for time within which to plead to an amended pleading. Note to Subdivisions (b) and (d). 1. See generally former Equity Rules 29 (Defenses-How Presented), 33 (Testing Sufficiency of Defense), 43 (Defect of PartiesResisting Obiection), and 44 (Defect of Parties-Tardy Objection); N. Y. C. P. A. (1937) §§ 277-280; N. Y. R. C. P. (1937) Rules 106-112; English Rules Under the Judicature Act (The Annual Practice, 1937) O. 25, r. r. 1-4; Clark, Code Pleading (1928) pp. 371-381. 2. For provisions authorizing defenses to be made in the answer or reply see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 25, r. r. 1—4; 1 Miss. Code Ann. (1930) §§ 378, 379. Compare former Equity Rule 29 (Defenses-How Presented); U. S. C., Title 28, former § 45 (District Courts; practice and procedure in certain cases under the interstate commerce laws). U. S. C., Title 28, former § 45, substantially continued by this rule, provides: "No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed." Compare Calif. Code Civ. Proc. (Deering, 1937) § 433; 4 Nev. Comp. Laws (Hillyer, 1929) § 8600. For provisions that the defendant may demur and answer at the same time, see Calif. Code Civ. Proc. (Deering, 1937) § 431; 4 Nev. Comp. Laws (Hillyer, 1929) § 8598. 3. Former Equity Rule 29 (Defenses-How Presented) abolished demurrers and provided that defenses in point of law arising on the face of the bill should be made by motion to dismiss or in the answer, with further provision that every such point of law going to the whole or material part of the cause or causes stated might be called up and disposed of before final hearing "at the discretion of the court." Likewise many state practices have abolished the demurrer, or retain it only to attack substantial and not formal defects. See 6 Tenn. Code Ann. (Williams, 1934) § 8784; Ala. Code Ann. (Michie, 1928) § 9479; 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 231, §§ 15-18; Kansas Gen. Stat. Ann. (1935) §§ 60705, 60-706. Note to Subdivision (c). Compare former Equity Rule 33 (Testing Sufficiency of Defense); N. Y. R. C. P. (1937) Rules 111 and 112. Note to Subdivisions (e) and (f). Compare former Equity Rules 20 (Further and Particular Statement in Pleading May Be Required) and 21 (Scandal and Impertinence); English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. r. 7, 7a, 7b, 8; 4 Mont. Rev. Codes Ann. (1935) §§ 9166, 9167; N. Y. C. P. A. (1937) § 247; N. Y. R. C. P. (1937) Rules 103, 115, 116, 117; Wyo. Rev. Stat. Ann. (Courtright, 1931) §§ 89-1033, 89-1034. Note to Subdivision (g). Compare Rules of the District Court of the United States for the District of Columbia (1937), Equity Rule 11; N. M. Rules of Pleading, Practice and Procedure, 38 N. M. Rep. vii [105-408] (1934); Wash. Gen. Rules of the Superior Courts. 1 Wash Rev. Stat. Ann. (Remington, 1932) p. 160, Rule VI (e) and (f). Note to Subdivision (h). Compare Calif. Code Civ. Proc. (Deering, 1937) § 434; 2 Minn. Stat. (Mason, 1927) § 9252; N. Y. C. P. A. (1937) §§ 278 and 279; Wash. Gen. Rules of the Superior Courts, 1 Wash. Rev. Stat. Ann. (Remington, 1932) p. 160, Rule VI (e). This rule continues U. S. C., Title 28, former § 80 (Dismissal or remand) (of action over which district court lacks jurisdiction), while U. S. C., Title 28, former § 399 (Amendments to show diverse citizenship) is continued by Rule 15. NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO RULES Note. Subdivision (a). Various minor alterations in language have been made to improve the statement of the rule. All references to bills of particulars have been stricken in accordance with changes made in subdivision (e). Subdivision (b). The addition of defense (7), “failure to join an indispensable party", cures an omission in the rules, which are silent as to the mode of raising such failure. See Commentary, Manner of Raising Objection of Non-Joinder of Indispensable Party, 1940, 2 Fed. Rules Serv. 658 and, 1942, 5 Fed. Rules Serv. 820. In one case, United States v. Metropolitan Life Ins. Co., E. D. Pa. 1941, 36 F. Supp. 399, the failure to join an indispensable party was raised under Rule 12 (c). Rule 12 (b) (6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. On the other hand, in many cases the district courts have permitted the introduction of such material. When these cases have reached circuit courts of appeals in situations where the extraneous material so received shows that there is no genuine issue as to any material question of fact and that on the undisputed facts as disclosed by the affidavits or depositions, one party or the other is entitled to judgment as a matter of law, the circuit courts, properly enough, have been reluctant to dispose of the case merely on the face of the pleading, and in the interest of prompt disposition of the action have made a final disposition of it. In dealing with such situations the Second Circuit has made the sound suggestion that whatever its label or original basis, the motion may be treated as a motion for summary judgment and disposed of as such. Samara v. United States, C. C. A. 2d, 1942, 129 F. 2d 594, cert. den.. 1942, 317 U. S. 686, 63 S. Ct. 258; Boro Hall Corp. v. General Motors Corp., C. C. A. 2d, 1942, 124 F. 2d 822, cert. den., 1943, 317 U. S. 695, 63 S. Ct. 436. See also Kithcart v. Metropolitan Life Ins. Co., C. C. A. 8th, 1945, 150 F. 2d 997, aff'g 62 F. Supp. 93. It has also been suggested that this practice could be Justified on the ground that the federal rules permit "speaking" motions. The Committee entertains the view that on motion under Rule 12 (b) (6) to dismiss for failure of the complaint to state a good claim, the trial court should have authority to permit the introduction of extraneous matter, such as may be offered on a motion for summary judgment, and if it does not exclude such matter the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in Rule 56 relating to summary judgments, and, of course, in such a situation, when the case reaches the circuit court of appeals, that court should treat the motion in the same way. The Committee believes that such practice, however, should be tied to the summary judgment rule. The term "speaking motion" is not mentioned in the rules, and if there is such a thing its limitations are undefined. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion. The Committee emphasizes particularly the fact that the summary judgment rule does not permit a case to be disposed of by judgment on the merits on affidavits, which disclose a conflict on a material issue of fact, and unless this practice is tied to the summary judgment rule, the extent to which a court, on the introduction of such extraneous matter, may resolve questions of fact, on conflicting proof would be left uncertain. The decisions dealing with this general situation may be generally grouped as follows: (1) cases dealing with the use of affidavits and other extraneous material on motions; (2) cases reversing judgments to prevent final determination on mere pleading allegations alone. Under group (1) are: Boro Hall Corp. v. General Motors Corp., C. C. A. 2d, 1942, 124 F. 2d 822, cert. den., 1943, 317 U. S. 695, 63 S. Ct. 436; Gallup v. Caldwell, C. C. A. 3d, 1941, 120 F. 2d 90; Central Mexico Light & Power Co. v. Munch, C. C. A. 2d, 1940, 116 F. 2d 85; National Labor Relations Board v. Montgomery Ward & Co., App. D. C. 1944, 79 U. S. App. D. C. 200, 144 F. 2d 528, cert. den., 1944, 65 S. Ct. 134; Urquhart v. American-La France Foamite Corp., App. D. C. 1944, 79 U. S. App. D. C. 219, 144 F. 2d 542; Samara v. United States, C. C. A. 2d, 1942, 129 F. 2d 594; Cohen v. American Window Glass Co., C. C. A. 2d, 1942, 126 F. 2d 111; Sperry Products Inc. v. Association of American Railroads, C. C. A. 2d, 1942, 132 F. 2d 408; Joint Council Dining Car Employees Local 370 v. Delaware, Lackawanna and Western R. Co., C. C. A. 2d, 1946, 157 F. 2d 417; Weeks v. Bareco Oil Co., C. C. A. 7th, 1941, 125 F. 2d 84; Carroll v. Morrison Hotel Corp., C. C. A. 7th, 1945, 149 F. 2d 404; Victory v. Manning, C. C. A. 3rd, 1942, 128 F. 2d 415; Locals No. 1470, No. 1469, and 1512 of International Longshoremen's Association v. Southern Pacific Co., C. C. A. 5th, 1942, 131 F. 2d 605; Lucking v. Delano, C. C. A. 6th, 1942, 129 F. 2d 283; San Francisco Lodge No. 68 of International Association of Machinists v. Forrestal, N. D. Cal. 1944, 58 F. Supp. 466; Benson v. Export Equipment Corp., N. Mex. 1945, 164 P. 2d 380, construing New Mexico rule identical with Rule 12 (b) (6); F. E. Myers & Bros. Co. v. Gould Pumps, Inc., W. D. N. Y. 1946, 9 Fed. Rules Serv. 12b, 33 Case 2, 5 F. R. D. 132. Cf. Kohler v. Jacobs, C. C. A. 5th, 1943, 138 F. 2d 440; Cohen v. United States, C. C. A. 8th, 1942, 129 F. 2d 733. Under group (2) are: Sparks v. England, C. C. A. 8th, 1940, 113 F. 2d 579; Continental Collieries, Inc. v. Shober, C. C. A. 3d, 1942, 130 F. 2d 631; Downey v. Palmer, C. C. A. 2d 1940, 114 F. 2d 116; DeLoach v. Crowley's Inc., C. C. A. 5th, 1942, 128 F. 2d 378; Leimer v. State Mutual Life Assurance Co. of Worcester, Mass., C. C. A. 8th, 1940, 108 F. 2d 302; Rossiter v. Vogel, C. C. A. 2d, 1943, 134 F. 2d 908, compare s. c., C. C. A. 2d, 1945, 148 F. 2d 292; Karl Kiefer Machine Co. v. United States Bottlers Machinery Co., C. C. A. 7th, 1940, 113 F. 2d 356; Chicago Metallic Mfg. Co. v. Edward Katzinger Co., C. C. A. 7th, 1941, 123 F. 2d 518; Louisiana Farmers' Protective Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc., C. C. A. 8th, 1942, 131 F. 2d 419; Publicity Bldg. Realty Corp. v. Hannegan, C. C. A. 8th, 1943, 139 F. 2d 583; Dioguardi v. Durning, C. C. A. 2d, 1944, 139 F. 2d 774; Package Closure Corp. v. Sealright Co., Inc., C. C. A. 2d, 1944, 141 F. 2d 972; Tahir Erk v. Glenn L. Martin Co., C. C. A. 4th, 1941, 116 F. 2d 865; Bell v. Preferred Life Assurance Society of Montgomery, Ala., 1943, 320 U. S. 238, 64 S. Ct. 5. The addition at the end of subdivision (b) makes it clear that on a motion under Rule 12 (b) (6) extraneous material may not be considered if the court excludes it, but that if the court does not exclude such material the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. It will also be observed that if a motion under Rule 12 (b) (6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment. In this manner and to this extent the amendment regularizes the practice above described. As the courts are already dealing with cases in this way, the effect of this amendment is really only to define the practice carefully and apply the requirements of the summary judgment rule in the disposition of the motion. Subdivision (c). The sentence appended to subdivision (c) performs the same function and is grounded on the same reasons as the corresponding sentence added in subdivision (b). Subdivision (d). The change here was made necessary because of the addition of defense (7) in subdivision (b). Subdivision (e). References in this subdivision to a bill of particulars have been deleted, and the motion provided for is confined to one for a more definite statement, to be obtained only in cases where the movant cannot reasonably be required to frame an answer or other responsive pleading to the pleading in question. With respect to preparations for trial, the party is properly relegated to the various methods of examination and discovery provided in the rules for that purpose. Slusher v. Jones, E. D. Ky. 1943, 7 Fed. Rules Serv. 12e.231, Case 5, 3 F. R. D. 168; Best Foods, Inc. v. General Mills, Inc., D. Del. 1943, 7 Fed. Rules Serv. 12e.231, Case 7, 3 F. R. D. 275; Braden v. Callaway, E. D. Tenn. 1943, 8 Fed. Rules Serv. 12e.231, Case 1 ("... most courts . . . conclude that the definiteness required is only such as will be sufficient for the party to prepare responsive pleadings"). Accordingly, the reference to the 20 day time limit has also been eliminated, since the purpose of this present provision is to state a time period where the motion for a bill is made for the purpose of preparing for trial. Rule 12 (e) as originally drawn has been the subject of more judicial rulings than any other part of the rules, and has been much criticized by commentators, judges and members of the bar. See general discussion and cases cited in 1 Moore's Federal Practice, 1938, Cum. Supplement, § 12.07, under "Page 657"; also, Holtzoff, New Federal Procedure and the Courts, 1940, 35-41. And compare vote of Second Circuit Conference of Circuit and District Judges, June 1940, recommending the abolition of the bill of particulars; Sun Valley Mfg. Co. v. Mylish, E. D. Pa. 1944, 8 Fed. Rules Serv. 12e.231, Case 6 ("Our experience has demonstrated not only that 'the office of the bill of particulars is fast becoming obsolete'. . . but that in view of the adequate discovery procedure available under the Rules, motions for bills of particulars should be abolished altogether."); Walling v. American Steamship Co., W. D. N. Y. 1945, 4 F. R. D. 355, 8 Fed. Rules Serv. 12e.244, Case 8 ("... the adoption of the rule was ill advised. It has led to confusion, duplication and delay.") The tendency of some courts freely to grant extended bills of particulars has served to neutralize any helpful benefits derived from Rule 8, and has overlooked the intended use of the rules on depositions and discovery. The words "or to prepare for trial"-eliminated by the proposed amendment-have sometimes been seized upon as grounds for compulsory statement in the opposing pleading of all the details which the movant would have to meet at the trial. On the other hand, many courts have in effect read these words out of the rule. See Walling v. Alabama Pipe Co., W. D. Mo. 1942, 3 F. R. D. 159, 6 Fed. Rules Serv. 12e.244, Case 7; Fleming v. Mason & Dixon Lines, Inc., E. D. Tenn. 1941, 42 F. Supp. 230; Kellogg Co. v. National Biscuit Co., D. N. J. 1941, 38 F. Supp. 643; Brown v. H. L. Green Co., S. D. N. Y. 1943, 7 Fed. Rules Serv. 12e.231, Case 6; Pedersen v. Standard Accident Ins. Co., W. D. Mo. 1945, 8 Fed. Rules Serv. 12e.231, Case 8; Bowles v. Ohse, D. Neb. 1945, 4 F. R. D. 403, 9 Fed. Rules Serv. 12e.231, Case 1; Klages v. Cohen, E. D. N. Y. 1945, 9 Fed. Rules Serv. 8a.25, Case 4; Bowles v. Lawrence, D. Mass. 1945, 8 Fed. Rules Serv. 12e.231, Case 19; McKinney Tool & Mfg. Co. v. Hoyt, N. D. Ohio 1945, 9 Fed. Rules Serv. 12e.235, Case 1; Bowles v. Jack, D. Minn. 1945, 5 F. R. D. 1, 9 Fed. Rules Serv. 12e.244, Case 9. And it has been urged from the bench that the phrase be stricken. Poole v. White, N. D. W. Va. 1941. 5 Fed. Rules Serv. 12e.231, Case 4, 2 F. R. D. 40. See also Bowles v. Gabel, W. D. Mo. 1946, 9 Fed. Rules Serv. 12e.244, Case 10 ("The courts have never favored that portion of the rules which undertook to justify a motion of this kind for the purpose of aiding counsel in preparing his case for trial."). Subdivision (f). This amendment affords a specific method of raising the insufficiency of a defense, a matter which has troubled some courts, although attack has been permitted in one way or another. See Dysart v. Remington-Rand, Inc., D. Conn. 1939, 31 F. Supp. 296; Eastman Kodak Co. v. McAuley, S. D. N. Y. 1941, 4 Fed. Rules Serv. 12f.21, Case 8, 2 F. R. D. 21; Schenley Distillers Corp. v. Renken, E. D. S. C. 1940, 34 F. Supp. 678; Yale Transport Corp. v. Yellow Truck & Coach Mfg. Co., S. D. N. Y. 1944, 3 F. R. D. 440; United States v. Turner Milk Co., N. D. Ill. 1941, 4 Fed. Rules Serv. 12b.51, Case 3, 1 F. R. D. 643; Teiger v. Stephan Oderwald, Inc., S. D. N. Y. 1940, 31 F. Supp. 626; Teplitsky v. Pennsylvania R. Co., N. D. Ill. 1941, 38 F. Supp. 535; Gallagher v. Carroll, E. D. N. Y. 1939, 27 F. Supp. 568; United States v. Palmer, S. D. N. Y. 1939, 28 F. Supp. 936. And see Indemnity Ins. Co. of North America v. Pan Amertoan Airways, Inc., 8. D. N. Y. 1944, 58 P. Supp. 338, Commentary, Modes of Attacking Insufficient Defenses in the Answer, 1998, 1 Fed. Rules Serv. 669, 1940, 2 Fed. Rules Serv. 640. Subdivision (g). The change in title conforms with the companion provision in subdivision (h). The alteration of the "except" clause requires that other than provided in subdivision (h) a party who resorts to a motion to raise defenses specified in the rule must include in one motion all that are then available to him. Under the original rule defenses which could be raised by motion were divided into two groups which could be the subjects of two successive motions. Subdivision (h). The addition of the phrase relating to indispensable parties is one of necessity. NOTES OF ADVISORY COMMITTEE ON 1963 AMENDMENTS TO RULES This amendment conforms to the amendment of Rule 4(e). See also the Advisory Committee's Note to amended Rule 4(b). CROSS REFERENCES Demurrers abolished, see rule 7 (c). Claims of opposing party, judgment on counter- Costs of previously-dismissed action, see rule 41 (d). Depositions, right to use depositions in former action, see rule 28 (d). Failure to serve answers to interrogatories, see rule 37 (d). Findings of fact and conclusions of law, necessity, see rule 52 (a). Voluntary and involuntary dismissal, see rule 41. District courts Jurisdiction, see chapter 85 of this title. Trials, hearings, and orders in chambers, see rule 77 (b). Venue, see chapter 87 of this title. Evidence on motions, see rule 43 (e). Findings of fact and conclusions of law unnecessary, see rule 52 (a). Indication of simplicity and brevity of statement, see rule 84. Judgment, definition of, see rule 54 (c). Adoption of statement by reference, see rule 10 (c). Courts always open for making, see section 452 of this title. Evidence on, see rule 43 (e). Extension of time, see rule 6 (b). Form of, see rule 7 (b). Motion day and oral hearings, see rule 78. Technical forms not required, see rule 8 (e) (1). Time for motions generally, see rule 6 (d). Parties Necessary joinder, see rule 19. Third-party defendant, defenses to third-party plaintiff and plaintiff's claims, see rule 14 (a). Pleadings Affirmative defenses, see rule 8 (c). Form of, see rule 10. Pleadings allowed, see rule 7 (a). Striking for failure to serve answer to interrogatory, see rule 37 (d). Waiver, objections to venue, see section 1406 of this title. FEDERAL RULE OF CRIMINAL PROCEDURE Bill of particulars, see rule 7 (f), Title 18, Appendix, Crimes and Criminal Procedure. Demurrers as abolished, see rule 12 (a). Motion raising defenses and objections, see rule 12 (b) and note of Advisory Committee under the rule. FORMS Answer presenting defenses under subd. (b) of this rule, see form 20, Appendix of Forms. Motion to dismiss, presenting defenses of failure to state a claim, of lack of service of process, of improper venue, and of lack of jurisdiction under subd. (b) of this rule, see form 19. RULE 13-COUNTERCLAIM AND CROSS-CLAIM (a) Compulsory counterclaims. A pleading shall take as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13. (b) Permissive counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. (c) Counterclaim exceeding opposing claim. A counterclaim may or may not diminish or defeat the recovery scught by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. (d) Counterclaim against the United States. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof. (e) Counterclaim maturing or acquired after pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. (f) Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment. (g) Cross-claim against co-party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (h) Additional parties may be brought in. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in these rules, if jurisdiction of them can be obtained and their joinder will not deprive the court of jurisdiction of the action. (i) Separate trials; separate judgments. If the court orders separate trials as provided in Rule 42 (b), judgment on a counterclaim or crossclaim may be rendered in accordance with the terms of Rule 54 (b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of. As amended Dec. 27, 1946, effective March 19, 1948; Jan. 21, 1963, effective July 1, 1963. NOTES OF ADVISORY COMMITTEE ON RULES 1. This is substantially former Equity Rule 30 (AnswerContents Counterclaim), broadened to include legal as well as equitable counterclaims. 2. Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. r. 2 and 3, and O. 21, r. r. 10—17; Beddall v. Maitland, L. R. 17 Ch. Div. 174, 181, 182 (1881). 3. Certain States have also adopted almost unrestricted provisions concerning both the subject matter of and the parties to a counterclaim. This seems to be the modern tendency. Ark. Civ. Code (Crawford, 1934) §§ 117 (as amended) and 118; N. J. Comp. Stat. (2 Cum. Supp. 19111924), N. Y. C. P. A. (1937) §§ 262, 266, 267 (all as amended, Laws of 1936, ch. 324), 268, 269, and 271; Wis. Stat. (1935) § 263.14 (1) (c). 4. Most codes do not expressly provide for a counterclaim in the reply. Clark, Code Pleading (1928), p. 486. Ky. Codes (Carroll, 1932) Civ. Pract. § 98 does provide, however, for such counterclaim. 5. The provisions of this rule respecting counterclaims are subject to Rule 82 (Jurisdiction and Venue Unaffected). For a discussion of Federal jurisdiction and venue in regard to counterclaims and cross-claims, see Shulman and Jaegerman, Some Jurisdictional Limitations in Federal Procedure (1936), 45 Yale L. J. 393, 410 et seq. 6. This rule does not affect such statutes of the United States as U. S. C., Title 28, former § 41 (1) (now §§ 1332, 1345, 1359) (United States as plaintiff; civil suits at common law and in equity), relating to assigned claims in actions based on diversity of citizenship. 7. If the action proceeds to judgment without the interposition of a counterclaim as required by subdivision (a) of this rule, the counterclaim is barred. See American Mills Co. v. American Surety Co., 260 U. S. 360, 43 S. Ct. 149, 67 L. Ed. 306 (1922); Marconi Wireless Telegraph Co. v. National Electric Signalling Co., 206 Fed. 295 (E. D. N. Y., 1913); Hopkins, Federal Equity Rules (8th ed., 1933), p. 213; Simkins, Federal Practice (1934), p. 663. 8. For allowance of credits against the United States see U. S. C., Title 26, § 3772 (a) (1) (2) (b) (Suits for refunds of internal revenue taxes-limitations); U. S. C., Title 28, former § 774 (now § 2406) (Suits by United States against individuals; credits), former § 775 (Suits under postal laws; credits); U. S. C., Title 31, § 227 (Offsets against judgments and claims against United States). NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO RULES Note. Subdivision (a). The use of the word "filing" was inadvertent. The word "serving" conforms with subdivision (e) and with usage generally throughout the rules. The removal of the phrase "not the subject of a pending action" and the addition of the new clause at the end of the subdivision is designed to eliminate the ambiguity noted in Prudential Insurance Co. of America v. Saxe, App. D. C. 1943, 77 U. S. App. D. C. 144, 134 F. 2d 16, 33–34, cert. den., 1943, 319 U. S. 745, 63 S. Ct. 1033. The rewording of the subdivision in this respect insures against an undesirable possibility presented under the original rule whereby a party having a claim which would be the subject of a compulsory counterclaim could avoid stating it as such by bringing an independent action in another court after the commencement of the federal action but before serving his pleading in the federal action. Subdivision (g). The amendment is to care for a situation such as where a second mortgagee is made defendant in a foreclosure proceeding and wishes to file a cross complaint against the mortgagor in order to secure a personal judgment for the indebtedness and foreclose his lien. A claim of this sort by the second mortgagee may not necessarily arise out of the transaction or occurrence that is the subject matter of the original action under the terms of Rule 13 (g). Subdivision (i). The change clarifies the interdependence of Rules 13 (1) and 54 (b). NOTES OF ADVISORY COMMITTEE ON 1963 AMENDMENTS TO RULES When a defendant, if he desires to defend his interest in property, is obliged to come in and litigate in a court to whose jurisdiction he could not ordinarily be subjected, fairness suggests that he should not be required to assert counterclaims, but should rather be permitted to do so at his election. If, however, he does elect to assert a counterclaim, it seems fair to require him to assert any other which is compulsory within the meaning of Rule 13(a). Clause (2), added by amendment to Rule 13(a), carries out this idea. It will apply to various cases described in Rule 4(e), as amended, where service is effected through attachment or other process by which the court does not acquire jurisdiction to render a personal judgment against the defendant. Clause (2) will also apply to actions commenced in State courts jurisdictionally grounded on attachment or the like, and removed to the Federal courts. Counterclaim CROSS REFERENCES Default judgment against counter-claimants, see rule 55 (d). Dismissal, see rule 41 (c). Mistake in designation of defense, see rule 8 (c). Reply, see rule 7 (a). Requisites of pleading, see rule 8 (a). Service of pleadings, numerous defendants, see rule 5 (c). Summary judgment, see rule 56 (a), (b). Third party practice, see rule 14 (a). Time for reply by United States, see rule 12 (a). Time of service of reply, see rule 12 (a). Cross-claim Answer to, if answer contains a cross-claim, see rule 7 (a). Default judgment against, see rule 55 (d). Joinder, see rule 18 (a). Requisites of pleading, see rule 8 (a). Service of pleadings, numerous defendants, see rule 5 (c). Summary judgment, see rule 56 (a), (b). Time for answer by United States, see rule 12 (a). Counterclaim, see forms 20 and 21, Appendix of Forms. RULE 14.-THIRD-PARTY PRACTICE (a) When defendant may bring in third party. At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 10 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and crossclaims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the thirdparty defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the thirdparty defendant thereupon shall assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant. (b) When plaintiff may bring in third party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so. As amended Dec. 27, 1946, effective March 19, 1948; Jan. 21, 1963, effective July 1, 1963. NOTES OF ADVISORY COMMITTEE ON RULES Third-party impleader is in some aspects a modern innovation in law and equity although well known in admiralty. Because of its many advantages a liberal procedure with respect to it has developed in England, in the Federal admiralty courts, and in some American State Jurisdictions. See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16A, r. r. 1—13; United States Supreme Court Admiralty Rules (1920), Rule 56 (Right to Bring in Party Jointly Liable); Pa. Stat. Ann. (Purdon, 1936) Title 12, § 141; Wis. Stat. (1935) §§ 260.19. 260.20; N. Y. C. P. A. (1937) §§ 193 (2). 211 (a). Compare La. Code Pract. (Dart, 1932) §§ 378-388. For the practice in Texas as developed by judicial decision, see Lottman v. Cuilla, 288 S. W. 123, 126 (Tex., 1926). For a treatment of this subject see Gregory. Legislative Loss Distribution in Negligence Actions (1936); Shulman and Jaegerman. Some Jurisdictional Limitations on Federal Procedure (1936), 45 Yale L. J. 393, 417, et seq. Third-party impleader under the former conformity act has been applied in actions at law in the Federal courts. Lowry and Co., Inc., v. National City Bank of New York, 29 F. 2d 895 (S. D. N. Y., 1928); Yellow Cab Co. of Philadelphia v. Rodgers, 61 F. 2d 729 (C. C. A. 3d, 1932). NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO RULES Note. The provisions in Rule 14 (a) which relate to the impleading of a third party who is or may be liable to the plaintiff have been deleted by the proposed amendment. It has been held that under Rule 14 (a) the plaintiff need not amend his complaint to state a claim against such third party if he does not wish to do so. Satink v. Holland Township, D. N. J. 1940, 31 F. Supp. 229, noted, 1940, 88 U. Pa. L. Rev. 751; Connelly v. Bender, E. D. Mich. 1941, 46 F. Supp. 368; Whitmire v. Partin (Milton), E. D. Tenn. 1941, 2 F. R. D. 83, 5 Fed. Rules Serv. 14a.513, Case 2; Crim v. Lumbermen's Mutual Casualty Co., D. D. C. 1939, 26 F. Supp. 715; Carbola Chemical Co., Inc. v. Trundle, S. D. N. Y. 1943, 3 F. R. D. 502, 7 Fed. Rules Serv. 14a.224, Case 1; Roadway Express, Inc. v. Automobile Ins. Co. of Hartford, Conn. (Providence Washington Ins. Co.), N. D. Ohio 1945, 8 Fed. Rules Serv. 14a.513, Case 3. In Delano v. Ives, E. D. Pa. 1941, 40 F. Supp. 672, the court said: the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue also a third party whom he does not wish to sue, by tendering in a third party complaint the third party as an additional defendant directly liable to the plaintiff.” Thus impleader here amounts to no more than a mere offer of a party to the plaintiff, and if he rejects it, the attempt is a time-consuming futility. See Satink V. Holland Township, supra; Malkin v. Arundel Corp., D. Md. 1941, 36 F. Supp. 948; also Koenigsberger, Suggestions for Changes in the Federal Rules of Civil Procedure, 1941, 4 Fed. Rules Serv. 1010. But cf. Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co., M. D. Ga. 1943, 52 F. Supp. 177. Moreover, in any case where the plaintiff could not have joined the third party originally because of jurisdictional limitations such as lack of diversity of citizenship, the majority view is that any attempt by the plaintiff to amend his complaint and assert a claim against the impleaded third party would be unavailing. Hoskie v. Prudential Ins. Co. of America (Lorrac Real Estate Corp.), E. D. N. Y. 1941, 39 F. Supp. 305; Johnson v. G. J. Sherrard Co. (New England Telephone & Telegraph Co.), D. Mass. 1941, 5 Fed. Rules Serv. 14a.511, Case 1, 2 F. R. D. 164; Thompson v. Cranston, W. D. N. Y. 1942, 6 Fed. Rules Serv. 14a.511, Case 1, 2 F. R. D. 270, aff'd C. C. A. 2d, 1942, 132 F. 2d 631, cert. den., 1943, 319 U. S. 741, 63 S. Ct. 1028; Friend v. Middle Atlantic Transportation Co., C. C. A. 2d, 1946, 153 F. 2d 778, cert. den., 1946, 66 S. Ct. 1370; Herrington v. Jones, E. D. La. 1941, 5 Fed. Rules Serv. 14a.511, Case 2, 2 F. R. D. 108; Banks v. Employers' Liability Assurance Corp. (Central Surety & Ins. Corp.), W. D. Mo. 1943, 7 Fed. Rules Serv. 14a.11. Case 2; Saunders v. Baltimore & Ohio R. Co., S. D. W. Va. 1945, 9 Fed. Rules Serv. 14a.62, Case 2; Hull v. United States Rubber Co. (Johnson Larsen & Co.), E. D. Mich. 1945, 9 Fed. Rules Serv. 14a.62, Case 3. See also concurring opinion of Circuit Judge Minton in People of State of Illinois for use of Trust Co. of Chicago v. Maryland Casualty Co., C. C. A. 7th, 1942, 132 F. 2d 850, 853. Contra: Sklar v. Hayes (Singer), E. D. Pa. 1941, 4 Fed. Rules Serv. 14a.511, Case 2, 1 F. R. D. 594. Discussion of the problem will be found in Commentary, Amendment of Plaintiff's Pleading to Assert Claim Against Third-Party Defendant, 1942, 5 Fed. Rules Serv. 811; Commentary, Federal Jurisdiction in Third-Party Practice, 1943, 6 Fed. Rules Serv. 766; Holtzoff, Some Problems Under Federal Third-Party Practice, 1941, 3 La. L. Rev. 408, 419-420; 1 Moore's Federal Practice, 1938, Cum. Supplement § 14.08. For these reasons therefore, the words "or to the plaintiff” in the first sentence of subdivision (a) have been removed by the amendment; and in conformance therewith the words "the plaintiff" in the second sentence of the subdivision, and the words "or to the third-party plaintiff" in the concluding sentence thereof have likewise been eliminated. The third sentence of Rule 14 (a) has been expanded to clarify the right of the third-party defendant to assert any defenses which the third-party plaintiff may have to the plaintiff's claim. Th's protects the impleaded thirdparty defendant where the third-party plaintiff fails or neglects to assert a proper defense to the plaintiff's action. A new sentence has also been inserted giving the third-party defendant the right to assert directly against the original plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. This permits all claims arising out of the same transaction or occurrence to be heard and determined in the same action. See Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co., M. D. Ga. 1943, 52 F. Supp. 177. Accordingly, the next to the last sentence of subdivision (a) has also been revised to make clear that the plaintiff may, if he desires, assert directly against the third-party defendant either by amendment or by a new pleading any claim he may have against him arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. In such a case, the third-party defendant then is entitled to assert the defenses, counter-claims and cross-claims provided in Rules 12 and 13. The sentence reading "The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff, or to the third-party plaintiff" has been stricken from Rule 14 (a), not to change the law, but because the sentence states a rule of substantive law which is not within |